FCA consults on further changes to SMCR

Authors: Sarah Thomas, Cat Dankos and Hywel Jenkins

At the end of January, the UK Financial Conduct Authority (FCA) issued a further consultation paper (CP19/4, the CP) on the Senior Managers and Certification Regime (SMCR). Responses to the CP are requested by 23 April 2019. Alongside other minor proposed changes which seek to “optimise” the SMCR, the key proposals are:

  • For all firms (banks, insurers, and all solo regulated firms), the legal function will not need to have a SMF Manager responsible for it.
    • Responsibility still has to be allocated to someone, but that individual does not need to be a SMF Manager.
    • The FCA expects the Head of Legal to be a certified function and that the conduct rules will apply to all legal staff.
    • Banks and insurers need to think about whether to change their SMF Manager allocations in light of this confirmation (as well as statements of responsibility and responsibilities map), and how to depict the position of the legal function on their responsibilities map.
  • For all firms (banks, insurers and solo regulated firms) the certification regime definition of the ‘client dealing’ function has been clarified (with a narrowing effect). It will exclude individuals who have no scope to exercise discretion.
    • Insurers and banks may wish to cross-check their existing pool of client dealing staff against the proposed new definition in readiness for the final rules.
  • For solo regulated firms, the FCA has expanded the scope of the forthcoming Enhanced regime to cover more intermediaries.
  • For limited scope solo regulated firms, Manager Conduct Rule 4 (SC4) will be amended to cover non-approved executive directors.

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On 26 April 2018, the Monetary Authority of Singapore (MAS) issued a Consultation Paper on its proposed, and much-anticipated, senior manager accountability regime in the form of ‘Guidelines on Individual Accountability and Conduct’ (Guidelines).

The Consultation Paper comes soon after the release of the Financial Stability Board’s (FSB) Toolkit for firms and regulators to use to strengthen governance frameworks to mitigate misconduct risk. The Toolkit encourages regulators to develop and monitor a responsibility and accountability framework.

A brief summary of the Guidelines is set out below. You can also read our bulletin on the FSB’s Toolkit here. Continue reading

Hong Kong regulators warn of common instances of non-compliance in asset management

The Hong Kong Securities and Futures Commission (SFC) has recently conducted around 250 inspections of licensed corporations engaged in asset management business, and has identified a number of common instances of regulatory non-compliance among them, which it has set out in its circular of 15 September 2017 (with appendix). In the circular, the SFC also sets out its expectations and calls on asset managers to review their internal control procedures and operational capabilities and enhance them (if necessary) to meet the SFC’s expectations. The Hong Kong Monetary Authority (HKMA) has also issued a circular to bring the SFC circular to the attention of registered institutions engaging in asset management business. Continue reading

Increased focus on board and senior management in Hong Kong as HKMA issues enhanced guidance on corporate governance

On 6 October 2017, the Hong Kong Monetary Authority (HKMA) issued a circular to announce the publication of two revised Supervisory Policy Manual (SPM) modules, namely CG-1 “Corporate Governance of Locally Incorporated Authorised Institutions” and IC-1 “Risk Management Framework”. Revisions were made to the modules to incorporate guidelines issued by the Basel Committee on Banking Supervision and the Financial Stability Board on corporate governance and risk management principles, thereby bringing Hong Kong more in line with international standards. Continue reading

Asset managers and their senior management (including MICs) warned of action for regulatory non-compliance in Hong Kong

Boards and senior management (including Managers-in-Charge of Core Functions (MICs)) of asset managers have been called on by the Hong Kong Securities and Futures Commission (SFC) (31 July 2017 circular) and the Hong Kong Monetary Authority (2 August 2017 circular) to ensure they maintain adequate management oversight of their firm’s business activities and to ensure maintenance of appropriate standards of conduct and proper risk management measures, after the SFC identified a number of potential regulatory concerns.

The SFC has said that it will continue to closely monitor asset managers and will not hesitate to take action against any licensed corporations and their senior management for failure to comply with regulatory requirements.

Our recent e-bulletin highlights the SFC’s concerns. If you have any questions or would like to know how this might affect your business, please feel free to contact William Hallatt, Hannah Cassidy, Natalie Curtis, or your usual Herbert Smith Freehills contact.

Hong Kong Manager in Charge regime: Implications for HR

On 16 December 2016, the Securities and Futures Commission issued a circular which introduces new measures to heighten the individual accountability of senior management of licensed corporations (LCs), through the designation of one or more Managers in Charge (MICs) of certain core functions.  Our e-bulletin of 19 December 2016 on the new MIC Regime, including implementation deadlines, can be located here.

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PRA and FCA provide feedback on the implementation of the Senior Managers’ and Certification Regimes for banks and insurers, and propose adjustments to strengthen the regime

On 28 September 2016, the FCA and PRA (the Regulators) issued a suite of papers setting out their feedback on the implementation of the Senior Managers and Certification Regime (SMCR), together with new proposals for amending some of its provisions and "optimising" its application to Banks and PRA investment firms.

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UK: FCA and PRA final rules on regulatory references: strengthening accountability in banking and insurance

The FCA and PRA have published new policy statements relating to regulatory references under the new accountability regimes for banks and insurers, which will come into force on 7 March 2017 (see FCA PS16/22 and PRA PS27/16).

Banks and insurers will have to comply with the new rules in the policy statements for all candidates being recruited to senior management functions, senior insurance management functions, FCA-controlled functions or significant harm functions from that date onwards.

The change will coincide with the implementation of the full certification regime and application of Conduct Rules to “other conduct staff”.

Please see our full briefing here for analysis of how this new regime will work in practice.


UK: One month to deadline for implementing FCA and PRA whistleblowing rules

Given the distractions of the summer holiday season and the aftermath of the Brexit referendum, it would be understandable if other developments slipped off the radar. However, there is one particular deadline for regulated firms that demands urgent attention.  Under the whistleblowing rules published by the FCA and PRA back in October 2015, relevant firms must implement effective internal whistleblowing arrangements by 7 September 2016.   Relevant firms include:

  • UK deposit-takers with assets of £250m or more (ie, banks, building societies and credit unions);
  • PRA-designated investment firms; and
  • Insurance and reinsurance firms subject to Solvency II, and the Society of Lloyd's and managing agents.

The arrangements must go further than the statutory whistleblowing protection available to workers and therefore even firms with pre-existing policies are likely to need to update them. 

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UK: Fair and Effective Markets Review publishes its final report

The Fair and Effective Markets Review (FEMR) has published its final report, setting out 21 recommendations to help restore trust in the wholesale Fixed Income, Currency and Commodity (FICC) markets.  The report follows the consultation which concluded on 30 January 2015.  The BoE has launched an open forum which will build on aspects of the FEMR report.

The recommendations are as follows: Continue reading